Court Finally Rejects “Discrimination” Lawsuit Against YouTube–Divino v. Google

This long-running lawsuit started in 2019. When I first blogged this case in January 2021, I wrote:

This lawsuit, like many others before it, claims that UGC services like YouTube commit illegal discrimination based on how they moderate content. Despite its lack of novelty, this lawsuit got some media coverage for two reasons: (1) most of the prior lawsuits were pro se, but this one had actual lawyers with bar licenses and everything, and (2) the lawsuit was filed on behalf of LGBTQ+ YouTubers whose felt discriminated against based on their sexual orientation, rather than the more traditional lawsuits by thin-skinned #MAGA conservatives.

The latest ruling addresses YouTube’s motion to dismiss the fourth amended complaint, which the court grants with prejudice. So this case is now finally headed towards its always-inevitable date with the Ninth Circuit.

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Last year, the judge gutted most of the case. In the Fourth Amended Complaint, the only remaining cause of action is the implied covenant of good faith and fair dealing. You’d think that if that claim is your strongest/only claim, you’d go ahead and give up, but I’m not a litigator so what do I know?

The court asked the plaintiffs to point to the relevant contract provisions that shape the implied covenant. The plaintiffs made several key concessions:

plaintiffs do not contend that there is an express contract provision requiring defendants to post plaintiffs’ videos on YouTube. Nor do plaintiffs deny that defendants have broad discretion in deciding whether to remove, restrict, or demonetize content on YouTube

Nevertheless, the plaintiffs pointed to various public-facing statements made in meetings/hearings. The court disregards those statements because they never became part of the contract between YouTube and its users. Vague aspirational statements in YouTube’s mission statement are puffery.

In contrast, this language from YouTube’s community guidelines seems both on-point and potentially legally binding:

We enforce these Community Guidelines using a combination of human reviewers and machine learning, and apply them to everyone equally—regardless of the subject or the creator’s background, political viewpoint, position, or affiliation.

(Practice pointer: YouTube’s lawyers should have scrubbed this language if they reviewed it rather than adding it when there’s pending litigation on this very point).

YouTube nevertheless sidesteps the trouble because it apparently added the language in 2021 (seriously, what was YouTube thinking???) and this lawsuit was filed in 2019, so the provisions couldn’t have been breached at the time of filing. The plaintiffs tried to bootstrap the timing, to no avail.

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The court didn’t discuss the 303 Creative v. Elenis Supreme Court ruling, but I wonder how it might apply to this case. Fundamentally, 303 Creative said that you can’t compel content producers to express content they don’t want to express. That seems highly germane to the Divino arguments about YouTube’s editorial discretion, because this lawsuit seeks to compel YouTube to express their content. (The fact that both cases involve LGBTQ content increases the parallels, but I can’t respect any business that discriminates against LGBTQ customers).

Case citation: Divino Group LLC v. Google LLC, 2023 WL 4372701 (N.D. Cal. July 5, 2023)